* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. This Order and Judgment is not binding pr ecedent, except under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNEST WADDELL SLATER, JR., Defendant-Appellant. No. 98-3032 (D.C. No. 96-CR-40075-01-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
Ernest Waddell Slater, Jr. pleaded guilty to posses sion with intent to distribute 8.62 grams of cocaine base, in violationof 21 U.S.C. § 841(a)(1), and was sentenced to 92 months’ imprisonment. He appea ls his sentence, contending that the district court erroneously denied him a re duction in the base offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1. We exercise jurisdiction over this appeal under 18 U.S.C. § 3742(a)(2), and affirm the sentence.- 2 -

We review the sentencing court’s "acceptance of r esponsibility" determination as a question of fact under the clear ly erroneous standard, United States v. Mitchell , 113 F.3d 1528, 1533 (10th Cir. 1997), cert. denie d , 118 S. Ct. 726 (1998); United States v. Amos , 984 F.2d 1067, 1071 (10th Cir. 1993), and accord great deference to the sentencing court because of its unique position to evaluate the defendant’s acceptance of responsibili ty. See U.S.S.G. § 3E1.1, Application Note 5; United States v. Janusz , 135 F.3d 1319, 1325 (10th Cir. 1998); Amos , 984 F.2d at 1073 (“The sentencing court’s determi nation that a defendant is not entitled to an adjustment for acce ptance of responsibility is entitled to great deference on review and should no t be disturbed unless it is without foundation.”). Application Note 3 to U.S.S.G § 3E1.1 provides thatentry of a guilty plea prior to trial combined with truthful admission of the conduct comprising the offense of conviction and of any other additional r elevant conduct constitutes significant evidence of acceptance of responsibility. The Note further provides, however, that this evidence “may be outweighed by c onduct of the defendant that is inconsistent with such acceptance of responsibil ity.” The district court in this case acknowledged that the government had agreed to a three-level reduction for acceptance of responsibility, but held that Mr. Slater was not entitled to such a reduction in light of findings by the- 3 -

magistrate judge that Mr. Slater had violated his b ond conditions by possessing firearms and ammunition and by being present during an undercover drug transaction. (ROA Vol. III, at 7; Vol. II, at 48-4 9). Mr. Slater contests the district court’s finding that the magistrate judge had ruled there was “probable cause” to believe that Mr. Slater was present durin g the drug transaction. Even assuming that the district court erroneously believ ed that the magistrate had made an actual “probable cause” finding to believe that Slater was present, (ROA Vol. III at 7), it is clear that the magistrate found th at the evidence showed that Slater “was present at the time of [the controlled] purcha se.” (ROA Vol. II at 48-49.) That the sentencing court slightly reworded this fi nding bears no consequence under the circumstances. In any event, the magistr ate judge’s findings with respect to Mr. Slater’s possession of firearms and ammunition, (ROA Vol. II at 46), coupled with his explicit concern that the def endant had “not made any effort to disassociate himself from the narcotics traffick ing,” (ROA Vol. II at 49), supply sufficient foundation for the sentencing cou rt’s refusal of the three-level reduction. See U.S.S.G. § 3E1.1, Application Note 1(b) (providing that, in determining whether defendant qualifies for reducti on for acceptance of responsibility, sentencing court may consider wheth er there has been voluntary termination or withdrawal from criminal conduct or associations).- 4 -

We give deference to the district court’s conclusio n that the evidence of Mr. Slater’s acceptance of responsibility was outwe ighed by conduct that was inconsistent with acceptance of responsibility. Ba sed on the record before us, we believe the district court did not clearly err in d etermining that, due to his continued criminal activity while on pre-trial rele ase, the defendant was not entitled to a reduction for acceptance of responsib ility. We therefore AFFIRM the sentence imposed by the district court. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge